SHRM considers criminal background checks an appropriate tool to help employers make informed hiring decisions while ensuring the safety and well-being of their employees and customers.

We appreciate the bipartisan nature in which the guidance was developed. SHRM recognizes that the EEOC held hearings and met with stakeholder groups on the use of criminal background checks in hiring, but we continue to believe that a public comment period should have been part of the development of the guidance.

SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

We look forward to reading the guidance in its entirety. However, SHRM remains concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions. We will continue to work with the commission to address issues related to the use of criminal background checks in hiring.

SHRM has conducted national research that shows a majority of employers are thoughtful in the hiring process and follow practices consistent with law designed to prevent discrimination in hiring. SHRM research in 2006 and 2010 does not show an increase in the use of background criminal checks.

Before the EEOC meeting on April 25, 2012 where the Commission voted 4-1 to approve the Enforcement Guidance document, in a letter dated April 18 regarding ‘Pending EEOC Guidance on Criminal Background Checks,’ a broad coalition of associations – including SHRM, the NAPBS, and the U.S. Chamber of Commerce – wrote to the EEOC to express “concerns over any forthcoming changes to the long-standing and appropriate EEOC guidance that would impede the ability of employers to continue to use criminal background checks to make informed hiring decisions.”

The Enforcement Guidance discusses disparate treatment analysis and gives examples of applicants with the same qualifications and criminal records being treated differently because of race or national origin in violation of Title VII.

The Enforcement Guidance explains two circumstances where employers may consistently meet the “job related and consistent with business necessity” defense: 1.) The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures; or 2.) The employer develops a targeted screen considering the nature of the crime, the time elapsed, and the nature of the job, then provides an individualized assessment to determine if the policy is job related and consistent with business necessity.

The Enforcement Guidance states that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.

The Enforcement Guidance says state and local laws or regulations are preempted by Title VII if they “require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

The Enforcement Guidance also recommends “best practices” for employers using criminal records:

Eliminate policies or practices excluding people from employment based on any criminal record.

Train managers, hiring officials, and decision makers about Title VII and its prohibitions on employment discrimination.

Develop a narrowly tailored written policy and procedures for screening criminal records.

Determine specific offenses that may demonstrate unfitness for performing such jobs.

Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment.

Record the justification for the policy and procedures.

Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.

Limit inquiries about criminal records to records for which exclusion would be job related for the position in question and consistent with business necessity.

Keep information about criminal records confidential and only use for the purpose intended.

The EEOC will hold open the April 25 Commission meeting record for 15 days, and invites members of the public to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.

To keep employers informed about the updated EEOC Enforcement Guidance, Employment Screening Resources (ESR) will offer updates in the ESR News blog and will soon be scheduling a webinar on the subject. For more information, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS) – at http://www.ESRcheck.com.